Category Archives: Immigration

“U.S. Citizenship and Immigration Services” text with American flag in background

We have seen a major increase in 2018 of Form I-9 audits from the Immigration and Customs Enforcement (ICE). First we saw 122 companies audited in California in February 2018. Next, we saw a number of companies in the Chicagoland area and throughout the Midwest receive Form I-9 audits in March 2018. Then, just weeks ago ICE made a number of arrests in the Chicagoland area.

This increase in activity is not showing any signs of slowing. In fact, we anticipate I-9 audits to increase and are aware of ICE hiring additional agents in the Chicago area to assist in the increase of Form I-9 audits.

What should a company do in light of ICE’s increased audits?

First, you need to ensure that your employees responsible for the Form I-9 process understand the Form I-9 requirements. The Form I-9 has changed a number of times over the last couple of years and we are finding that those changes are not necessarily understood by employers. Make sure you are using the most recent form.

Second, you should audit your Form I-9’s, either on your own, or have an attorney assist you to help identify and correct technical Form I-9 errors. A self-audit before ICE arrives can assist in reducing your liability during an ICE audit.

Third, you need to have a plan if ICE audits your Form I-9’s. Your plan needs to include what to do the day ICE arrives along with what to expect from the audit process and potential ramifications on your business.

After a decade of rapid growth which saw the international student population increase 85 percent to over a million students, the number of newly arriving international students fell 3 percent in the 2016-2017 academic year.

President Trump’s campaign rhetoric and subsequent action as President have contributed to substantial declines in international student enrollment for the current academic year. Across the country the number of new international students declined an average of 7 percent according to a study of about 500 campuses by the Institute of International Education, with 45 percent of campuses reporting at least some decrease.

I encourage education and university clients, and any employer hiring international students to be calm and take a breath. One thing I have noticed about President Trump’s actions is that they have been very consistent with his campaign promises: border enforcement and bans. He wants to move to a merit-based immigration system similar to Canada and Australia.

If the U.S. does move to a merit-based immigration system, international students may gain an advantage. A merit-based system is point-based and prizes highly educated immigrants. Who would be better positioned than those who gained a U.S. college education?

In fact, Sen. Orrin Hatch and Sen. Jeff Flake introduced a bill in the U.S. Senate last week, the Immigration Innovation (I-Squared) Act of 2018, to allow as many as 195,000 H-1B visas. The proposal would increase the number of H-1B visas by 110,000 (from 85,000), while awarding U.S. advanced degree-holders expanded priority in the selection process.

As colleges regroup to recruit internationally in this context, it is recommended that they approach prospects with an eye toward the H-1B visa that international students will ultimately want to apply for. These are students who:

Intend on a STEM major: Engineering majors are the safest bet.

Plan to work in a STEM field or true specialty occupation: Qualifying occupations include doctors, lawyers, teachers and engineers.

Unfortunately, unless a student wants to teach a foreign language, liberal arts students are unlikely to qualify for an H-1B visa.

Colleges may even want to use the possible advantage of U.S. college education in a merit-based immigration system as a recruiting point.

U.S. colleges, universities and employers can weather this intense immigration storm by staying calm and focusing their recruitment on the areas most likely to succeed with visas.

Deferred Action for Childhood Arrivals (DACA) Renewals Resume
As of January 13, 2018, the United States Citizenship and Immigration Services (USCIS) has announced that, due to pending litigation and a federal court order, it is going to resume accepting and processing renewals for DACA recipients including Employment Authorization Documents granting work status. This only applies to DACA recipients who had previously been granted deferred action status and USCIS is NOT accepting first time DACA applications.

USCIS has indicated the following:

If the person previously received DACA and their DACA expired on or after Sept. 5, 2016, the person may still file a DACA request as a renewal request which includes a request for extension of the person’s work authorization.

If the person previously received DACA and the DACA expired before 9/5/16, the person may file a new initial DACA request including work authorization.

Employers should check the USCIS website for additional information, but this is good news for employers and employees as employees on DACA now have an avenue to once again renew their employment authorization and legal work status.

Temporary Protected Status
On November 20, 2017, the Acting Secretary of Homeland Security announced the decision to end Temporary Protected Status (TPS) for Haiti. The transition period is for 18 months and the TPS designation will end on 7/22/19.

On January 8, 2018, the Secretary of Homeland Security announced the decision to terminate the TPS designation for El Salvador. Again, there is an 18 month transition period and the TPS designation will terminate on 9/9/19.

These announcements will eliminate the ability for individuals from Haiti and El Salvador to apply for employment authorization documents and work authorization based on their TPS status.

If a company employs an alien authorized to work, the company must keep track and monitor the date in which an alien’s work authorization expires. These employees require reverification. SeeUSCIS Handbook for employers for more information about reverification of current employees.

On September 5, 2017, the Acting Secretary of Homeland Security rescinded the memorandum issued during the Obama administration that had established the Deferred Action for Childhood Arrival (DACA) program, announcing that it will be phased out over the next six months, allowing Congress time to craft a “permanent legislative solution.”

Ending DACA will affect not just the people covered under the program, but also thousands of employers nationwide. A controversial Obama-era policy, DACA has been a program where certain people who came to the United States as minors without documentation, yet met several guidelines, could request consideration of deferred removal proceedings and request authorization to live and work in the United States legally. Currently, the program shields around 800,000 young undocumented immigrants from deportation and allows them to work legally.

U.S. Citizenship and Immigration Services (USCIS) issued new guidance on their website as of September 5, 2017 regarding initial DACA requests and DACA renewals. Here are the key points to note:

DACA beneficiaries will not be affected until after March 5, 2018—six months from the date of the announcement

No new DACA applications will be considered, but applications filed by September 5, 2017 will still be processed

Current DACA recipients whose permits and or work authorization expires between now and March 5, 2018, have until October 5, 2017 to apply for renewal of these benefits

In light of this change, employers are recommended to review their Form I-9’s and identify any individual whose work authorization is going to expire on or before March 5, 2018. Employers should notify these employees of the date their work authorization will expire and remind them that the company cannot continue to employ the employee past this expiration date unless the employee is able to provide proof of continued work authorization. To reiterate, any DACA renewals must be filed no later than October 5, 2017 or USCIS will not process them. Read the USCIS announcement for details.

However, some Employment Authorization Document (EAD) categories (other than DACA) have been granted a 180 day automatic extension to the employee’s work authorization deadline. Visit the USCIS website for more information on the eligibility requirements for the Automatic Employment Authorization Document (EAD) Extension. Thus, employers must be careful to follow the applicable guidelines when addressing the proper end date of an employee’s work authorization and reauthorization requirements.

Final Takeaway: Employers must understand that they MAY NOT discriminate and cannot refuse to hire an individual solely because that individual’s employment authorization document will expire in the future.

We anticipate that Congress may now attempt to fast track some type of immigration reform related to those persons that were formerly covered under DACA, but only time will tell.

We are now almost three weeks into the New Year and while it might be tempting to ease into 2017, the time is now to ensure that the required compliance updates have been made to your payroll and Form I-9 procedure to comply with the 2017 changes.

Minimum Wage

The following 21 states have updates to their minimum wage that affect your payroll for 2017:

Employers should ensure that these required changes have been conveyed to your payroll manager and payroll provider and perform an audit to ensure that the change was made effective in your payroll system.

Form I-9

As we reported on November 17, 2016, U.S. Citizenship and Immigration Services (USCIS) released the new version of the Form I-9 on November 14, 2016. NO LATER THAN January 22, 2017, employers MUST use the revised form (dated 11/14/2016 N) for all new hires and any employee that requires reverification of employment eligibility.

Employers should review their Form I-9 practices, ensure they are complying by using the new form by the deadline, and train employees responsible for completing the form regarding the new form requirements.

Employers should be aware that some Green Cards (“permanent resident cards”) now have an image stating “Signature Waived” on the front and back of the card where a signature would normally be located instead of the permanent resident’s actual signature. U.S. Citizenship and Immigration Services (“USCIS”) has indicated that these cards are issued to people entering the U.S. for the first time as lawful permanent residents after obtaining their immigrant visa abroad from a U.S. Embassy or consulate. This process began in February 2015. The Green Cards are valid documents and acceptable to support an employee’s authorization to work in the U.S. Employers should train the employees responsible for the Form I-9 process regarding this change.

EADs Come With Varying Expiration Dates Based on Court Injunction

On February 16, 2015, a federal district court judge in Texas granted a preliminary injunction temporarily blocking the implementation of President Obama’s Deferred Action for Parents of Citizens and Lawful Permanent Residents (“DAPA”) and the expansion of Deferred Action for Childhood Arrivals (“DACA”). As a result of the injunction, USCIS was ordered to stop issuing 3-year Employment Authorization Documents (“EAD”) for DACA recipients and only issue 2-year EADs going forward. Approximately 2,100 3-year EADs, issued after February 16th, were required to be returned to USCIS by July 31st. USCIS has indicated that they have issued 2-year EADs to the 2,100 affected persons. Note, the February 16th injunction DOES NOT affect the approximately 108,000 three-year EADs that were issued PRIOR TO the February 16th injunction going into effect. There continues to be ongoing litigation regarding the implementation of DAPA and the extended DAPA which will affect the period of time in which a DACA recipient may receive an EAD.

Employers should be aware that their employees may present EADs with varying expiration periods. Employers need not keep track of the daily process of the ongoing federal litigation but should train their employees responsible for the Form I-9 process that there is no set expiration date for an EAD and the expiration will vary based on the EAD. Remember, employers are not required to be document experts. During the Form I-9 process, employers are required to accept documents that reasonably appear to be genuine and to relate to the person presenting them. However, if the employee provides a document that does not reasonably appear to be genuine and relate to them during the Form I-9 process, you must reject that document and ask the employee to present alternate documents that satisfy the requirements of Form I-9.

Moments after President Obama announced that he would be expediting H-4 work authorizations last November, I received a call from a client inquiring about how to start the application process for his wife. I can understand their desire to jump on the opportunity. The green card acquisition process can drag on for years, testing the patience of many foreign nationals and frustrating their spouses who want to work, but who cannot by law. A dependent spouse’s inability to work can strain the couple’s economic viability and their marriage and prompt them to consider moving to another country.

The prospect of H-4 work authorization has lifted the hopes of many of those couples. The Department of Homeland Security (DHS) estimated that 179,600 spouses would apply for an Employment Authorization Document (EAD) in first year of availability with 55,000 requests each year afterward. In February DHS announced that they would begin considering applications for employment authorization for certain H-4 dependent spouses on May 26, 2015. Eligible individuals include H-4 dependent spouses of H-1B nonimmigrants who either:

Are the principal beneficiaries of an approved Form I-140 Immigrant Petition for Alien Worker; or

Were granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the U.S. beyond the six year limit on H-1B status.

However, on Thursday April 23, three employees from Southern California Edison sued the DHS to stop the work authorization provision, claiming that they had been displaced by H-1B workers and would face increasing competition if H-4 spouses were authorized to work. Save Jobs USA has also filed a preliminary injunction against the H-4 work authorization rule.

Given that the U.S. has not issued H-4 EADs before, we are in unchartered territory. It is hard to say how these cases and the H-4 EAD process will go. Rather than lose hope though, those interested in an H-4 EAD should be ready to file in case the May 26, 2015 date holds or for whenever DHS is able to accept applications.

Taking action to prepare to file will feel better than just waiting and will allow you to file as soon as the window for applications opens. Here’s what you will need to file an H-4 application for employment authorization:

Form I-765, plus filing fee of $380.

Two passport style photographs.

Proof of your marital relationship. If your marriage certificate is in a language other than English, you’ll need an English translation for it.

A valid passport.

A copy of your visa stamp. Make sure that you have a visa stamp and that you have a copy of it to submit with your application.

Your H-4 approval notice if you have one.

Evidence of your I-94 stamp. The I-94 stamp is the stamp you received in your passport on the day you entered the United States.

A copy of any prior EAD cards that you had. If you were a student and obtained an EAD card then, you’ll need to submit a copy of that card with your application.

Note: the above list is not meant to be an exhaustive list of documents to include nor is it meant as legal advice for any one specific individual.

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